by Matt Barr

Drug busts authorized; world ends

Have had a chance to browse some of the reaction and analysis to Raich. Much of the outrage seems not to be tethered to legitimate constitutional arguments.

One that has some heft comes from Mr. Justice Thomas' dissent:

If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything -- and the Federal Government is no longer one of limited and enumerated powers.

But is this true? Can the federal government prohibit me from adopting a puppy from the local pound? Charge a federal puppy fee? Subject my home to an inspection to ensure the puppy will be in a safe, clean environment? I think not, even as I anticipate there are ways you can relate the adoption of a puppy to interstate commerce (buying Alpo, enlisting the services of a veterinarian educated out of state, travelling with the puppy across state lines).

Why is this? The puppy is not fungible -- I can prove I got it at the pound instead of on the puppy black market. Puppy adoption is not overwhelmingly a matter of illicit trade nationwide. There would be almost no market for the puppy if I decided to sell it.

And on and on. Under the auspices of the Commerce Clause boosted (as feared by Thomas) by the Necessary and Proper Clause, can the federal government regulate the way I prune my hedges? Choose clothes to wear in the morning? No. Now, this proves nothing beyond it's not as bad as Thomas and his new fans make it out to be, it doesn't mean it's a good idea.

The more outcome-centric complaints about the decision include David Bernstein's:

There are essentially two strategies for those who are concerned with civil liberties for limiting the government's ability to abuse the rights of the public. One is the standard ACLU strategy of being a liberal supporter of broad government power, and then insisting that the government respect individual rights, especially constitutional rights, when using that power. The other strategy, followed by libertarians, is to try to limit the government's general power to begin with because the government cannot abuse power it does not have.

This concedes something I am not willing to concede: that we best (and must) limit the reach of the federal government by getting a judge to say we can't do something, in perpetuity. That must be what "libertarians... try to limit the government's general power to begin with" means, because, in context, it doesn't mean amending the constitution or writing a new one. To be a libertarian in good standing, I should recognize the folly of Raich, or risk being painted as a card-carrying member of the ACLU?

It is possible -- I'm living proof -- to favor a federal government of enumerated powers involving only truly national concerns, to believe trade in narcotics is among those things Congress may regulate, given its (inter)national scope and effect on the economy, but that it shouldn't, or at least not nearly as much as it does. If I believe the federal government has the power to shut the borders to all immigrants, does that make me an opponent of pluralism and an isolationist?

Mark Tushnet blames Kennedy:

I suppose one ought to note the artificiality of writing about "the Court" in this context. Does anyone doubt that four justices would overrule Lopez and Morrison in a second if Justice Kennedy came to them and said, "I can't distinguish this case from Lopez and Morrison, but I don't want to strike it down. We tried this for a decade and it didn't work. Let's just give up"?

Well, I'm comfortable knowing the proper scope of the federal government depends entirely on one man. Would there be cheering (I suspect I know the answer) if what Tushnet describes had happened?

Nick Gillespie says:

This is a major fuck you to sick people who are in pain.

Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers was a major fuck you to migratory birds, too, but since that decision reined in the commerce clause, we'll go along with that. It's a harsh world indeed, but "someone's getting fucked" is no more a principle of constitutional jurisprudence than how would you feel?!?!?

So many people today seem to be fighting the battle over whether the federal government, or indeed anybody, should be prosecuting medical marijuana users. For a little while longer, at least, we live in a country where that fight is properly fought in the law- and policymaking arenas, not in court.

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